Title IX proceedings: Far less fair than the Honor Code

“Fairness.” It was the word at the heart of the arguments made in favor of Honor Code reform during December’s campaign. In announcing the referenda, the campaign sponsors wrote, “Most importantly, we need a fair system … we’re proposing four, common-sense reforms that will lead to greater fairness and academic integrity.” The importance of fairness was repeated throughout a photo campaign featuring calls from student leaders to vote for Honor Code reform in order to, for example, “strengthen our commitment to academic integrity, due process, and fairness for all students,” “ensure fairness for future classes,” and “make sure the system is fair for everyone.”

Given the campaign’s emphasis on fairness and the student body’s overwhelming support for Honor Code reform, it may come as a troubling surprise to many that the existing Honor system is in fact far fairer and offers far stronger due process protections than another campus disciplinary process: investigation and adjudication of sexual misconduct cases through the Title IX Coordinator. Indeed, Princeton’s Title IX proceedings offer less procedural fairness and fewer due process protections than the Honor system does in five key areas:

The Honor Constitution, in Article III, Section A, explicitly enumerates many important rights (10, to be exact) of a student accused of violating the Honor Code, such as the rights to call witnesses and to maintain his or her innocence. By contrast, Section 1.3.12 of Rights, Rules, Responsibilities (RRR), which describes the process for investigating, adjudicating, and appealing sexual misconduct cases, includes no clear and affirmative declaration of the rights of the accused.

The Honor Committee allows the accused student to bring an active and participatory adviser to his or her hearing. Under Article III, Section A of the Honor Constitution, an accused student’s Peer Representative may participate in the hearing by supplementing the student’s answers to questions, questioning witnesses, and making closing remarks. By contrast, per Section 1.3.12.1 of RRR, the accusing and accused students in a Title IX case “may select an adviser of their choice who may accompany them to any meeting or related proceeding, but the adviser may not actively participate in the interview process.”

The Honor Committee utilizes a higher burden of proof to determine if a violation has occurred than does the Title IX panel. As Article II, Section D of the Honor Constitution enumerates, “a student will be found responsible if the Committee finds overwhelmingly convincing evidence that the student ought reasonably to have understood that their actions were in violation of the Honor Code.” By contrast, according to Section 1.3.12.1 of RRR, “the [Title IX] investigative panel will conduct an inquiry and determine, by a preponderance of the evidence, whether this policy was violated.” Under the preponderance of evidence standard, panelists will find a student responsible if they believe that it is ‘more likely than not’ that an allegation is true. It is the lowest burden of proof possible in legal proceedings — far too low a standard under which to find a student responsible for a serious infraction that could result in his or her suspension or expulsion from the University.

The Honor Committee also requires that a higher percentage of its members vote to find a student responsible for the student to be convicted than does Title IX. Per Article III, Section D of the Honor Constitution, six out of seven, or 85.7 percent, of Honor Committee members adjudicating a case must vote that they are overwhelmingly convinced a violation occurred for the student to be found responsible. By contrast, two out of three, or only 66.7 percent, of the Title IX panelists must vote, based on the lower preponderance of evidence standard, that a violation occurred for the student to be penalized.

Finally, Honor Committee hearings to determine responsibility are more unbiased and independent than those of Title IX. As enumerated in Section 2.3.3 of RRR, the two Honor Committee members who investigate a case do not participate in the deliberations about responsibility for that case. By contrast, the same three panelists for Title IX cases both investigate a complaint and vote on findings of responsibility for that complaint. Furthermore, Princeton’s current Title IX proceedings were only recently established in fall 2014, as part of a resolution agreement to conclude an investigation by the Department of Education Office for Civil Rights into Princeton’s handling of sexual misconduct cases. This agreement was accompanied by extreme political pressure on universities around the country to respond more forcefully to sexual misconduct, including by diminishing due process protections in sexual misconduct cases and finding more accused students responsible. While RRR states that “panelists will be impartial and unbiased,” in the context of the outside pressure Princeton has faced, a student accused under Title IX could reasonably be concerned about the impartiality of individuals selected for the panel.

Moreover, the nonpartisan Foundation for Individual Rights in Education (FIRE) recently issued a report on due process that gave Princeton a ‘D’ rating for the lack of due process and fairness in its handling of sexual misconduct cases. FIRE examined “10 fundamental elements of due process,” finding that Princeton’s Title IX proceedings lacked five of these key elements and that the other five were only partially present.

While some may argue that the seriousness of sexual misconduct justifies diminishing due process protections, that seriousness ought to be reflected in the punishment a student found responsible receives, not by using unfair procedures when an accused student retains the presumption of innocence. Indeed the seriousness of sexual misconduct is why Princeton students found responsible face a range of possible penalties, including multi-year suspension or expulsion.

For all of the same arguments about fairness, justice, and the possibility of disparate impacts on different University populations that students made in favor of Honor Code reform, the fundamental unfairness of Princeton’s Title IX proceedings is deeply troubling. As campus conversations continue around Princeton’s disciplinary bodies, I hope our student leaders who so forcefully campaigned to improve the fairness of the Honor Code will be similarly strong advocates for improving the fairness of the far less fair Title IX proceedings. Because as one elected U-Councilor stated for Honor Code reform’s photo campaign, “due process doesn’t disappear when you get to Princeton.”

Allison Berger is a senior in the Economics department from Madison, N.J. She can be reached at alberger@princeton.edu.